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Questions Raised by Justice Scalia’s Passing; About Original Intent

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I have often been among those who gave thanks for the opinions in which Justice Scalia cogently applied the principle of scrupulous respect for the language and original intent of the U.S. Constitution. On account of that respect, Justice Scalia often reached conclusions opposed to the degradation of reason, right and rightful liberty which, in my lifetime, has more often than not characterized the anti-constitutional jurisprudence of the U.S. Supreme Court.

I describe it as anti-constitutional advisedly and with careful forethought. Since at least the time when Samuel, prophet to the Israelite, “told the people the just ordering of the kingdom, and inscribed it upon a scroll” (1 Samuel 10:25), respect for the written word has been essential to the integrity of constitutional government. Many of America’s Founders were obviously more instructed by this Biblical example than by the protean fiat “constitution” sprouted from the seed of England’s Magna Carta. Like the Biblical prophet, they did not revere the words because they were written. They assented to what was written because it reasonably accorded with the Word. Obviously, the question then becomes, Whose word?

Justice Scalia’s answer appeared to be “the word of the Founders.” But did the Founders agree with him?

Historian Gordon Wood described the presentation of the principles of republican government in Thomas Paine’s essay “The Rights of Man” as “the best and most succinct expression of American Revolutionary political thinking ever written.”

In Part 1 Paine sets forth the common sense logic of the originalist understanding characteristic of the America’s Founding generation:

The error of those who reason by precedents drawn from antiquity, respecting the rights of man, is that they do not go far enough into antiquity. They do not go the whole way. They stop in some intermediate stages of an hundred or a thousand years, and produce what was then done, as a rule for the present day. …but if we proceed on, we shall at last come out right; we shall come to the time when man came from the hand of his Maker.

Paine’s observation causes us to see Justice Scalia’s respect for the language and intent of the U.S. Constitution in a different light. Is the intent in question simply that of America’s Founders? For as Paine goes on to note:

If the mere name of antiquity is to govern in the affairs of life, the people who are to live an hundred years hence, may as well take us for a precedent, as we make a precedent of those who lived an hundred or a thousand years ago. The fact is, that portions of antiquity, by proving everything, establish nothing. It is authority against authority all the way, till we come to the divine origin of the rights of man at the creation.

Did Justice Scalia see and apply Paine’s relentless logic? What he said in a speech at the Georgetown University Law Center epitomized his thinking:

The non-originalist judge who decides what the modern Constitution ought to mean — perhaps by applying his favorite principles of moral philosophy, or perhaps only by applying his own brilliant analysis of what the times require — escapes the application of any clear standard, by which we may conclude that he is a charlatan…

But though this statement calls for a “clear standard,” it leaves the obvious question unanswered: “What standard is that?”

When asked about his dissenting opinion in Lawrence v. Texas, (in which he wrote that the Constitution does not keep Americans from “protecting themselves and their families from a lifestyle they believe to be immoral and destructive…”), this is what Justice Scalia said about homosexuality:

“…that’s not saying that I personally think it’s destructive. Americans have a right to feel that way. They have a democratic right to do that, and if it is to change it should change democratically, not at the ukase of a Supreme Court.”

So when Justice Scalia addressed the issue of right, he argued for accepting the meaning and intent of America’s Founders unless and until, by democratic means, the people decide to change it. But what if the people refuse to change, as they did for several hundred years when it came to the issue of slavery? Thomas Paine argued unequivocally that the ultimate authority in matters of right and wrong was the authority of the Maker, the Creator. His compatriots in the American Revolution took the same view in the Declaration of Independence.

Justice Scalia was a Roman Catholic. As a matter of personal faith, he undoubtedly believed that, as our Creator, God is the final arbiter of justice in human affairs. But he often spoke as if this acknowledgment of God’s authority had no bearing, in practice, on Constitutional jurisprudence. But in that case, what is the basis for the authority of the Constitution itself? It is ordained and established by the voice of the people of the United States. But what gives the people the authority to dictate, by and for themselves, how government should be constituted? What makes them the ultimate arbiters of what is properly the use, or otherwise the abuse, of government power?

On behalf of the American people the representative body that wrote and approved America’s Declaration of Independence answered: “The Creator, God.” The people who fought to vindicate that answer during the American Revolutionary war asserted the rightness of their self-government by evoking God’s will as the author of human nature. In consequence, can such a people logically implement and sustain that assertion without respecting the authority of God? When they finally stood fast against the British King’s abuses, they did so appealing to God’s standard for right in human affairs, not to some vague shibboleth that substituted the power of the people (democracy) for His authority.

For two centuries and more the tenor of their appeal has reverberated through every era of America’s life as a nation. Every species of violent injustice familiar to human experience is to be found in our history, deeply rooted in greed and lust, especially the lust for power. This includes, of course, the systematic evil of chattel slavery inflicted upon my ancestors. But America’s history also includes every species of human courage and good conscience capable of inspiring people to fight against such evils.

In that fight, “democracy” was often paralyzed by confusion, selfish interest and cowardice, thanks largely to the bad influence of self-idolizing wealth and power. “The people” acquiesced in wrongdoing or co-operated to empower it. But the Declaration’s acknowledgment of the standard of God’s rule always produced some individuals of goodwill, standing steadfast even when outmatched in all but spirit. Thus encouraged, they persisted in the pursuit of justice until liberty, as endowed by God, prevailed.

Because he consistently demanded respect for the Founders’ intention, Justice Scalia was a champion of their authority. But as we heard from Thomas Paine, the Founders themselves acknowledged that, in the contest of merely human wills, it is authority against authority until we come to the authority of our Creator. The Founders had every reason to anticipate the denial of God’s authority that threatens to prevail in our time. But they nonetheless staked America’s future upon it. With Justice Scalia’s passing we are reminded of the limits of human endurance. We are called to look, as our Founders did, for the standard which alone prevails beyond those limits.

But in the dark confusion of our times, who can still see that standard? Who, if not those whose eyes good faith has opened; whose hearts are willing not only to see the words that constitute our liberty, but to hear in them the spoken Word that set the stars in motion. Who, if not those who trust withal, that God took care, despite the sin-raised shadow of death, to see His image impressed upon each and every human person who rightly seeks to exercise the rights intrinsic to human nature?

It is this impression of God that gives every human being a claim to liberty, rooted in an intention far greater than that of America’s Founders, or of any other merely human will. For it is the timeless intention of God, good not just for us, but for all His Creation.

Though Justice Scalia’s voice will no longer be heard, impelling us to raise the question, still we must continue to ask and answer it: Apart from our reverence for God’s original intention, isn’t our Constitution doomed to fail?



 

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